Proving Drug Possession With Intent to Distribute in New York

Drug possession with the intent to distribute is taken seriously in New York. That is why prosecutors take a thorough approach to proving drug possession with intent to distribute in New York. The vigilance of the prosecutors and the vigilance of law enforcement can be intimidating but, you do not have to face these charges alone. A determined drug possession lawyer can work diligently to build a solid case for you.

Law Enforcement’s Role in Determining Charges

At the initial stage, it is the NYPD or respective police agency that makes charging decisions. Outside of New York City, the police even draft the criminal complaint against the defendant. However, the ultimate decisions as to what charges an individual will face is made by the District Attorney’s Office. Similarly, the United States Attorney makes this determination on the federal level.

Usually, law enforcement wants to come from a position of power. They may pursue a felony arrest and even a felony complaint to charge a felony because they believe that even if the top charge is not the strongest, prosecutors may use the greater exposure to get leverage on a plea.

It is worth noting that when an individual is charged with felony crimes while prosecutors make charging decisions ultimately the Grand Jury determines whether there is enough evidence to proceed on the felonies. Right or wrong, better or worse, the legal threshold as to whether there is reasonable cause to believe a felony was committed is quite low.

Elements the Prosecution Must Prove

When proving drug possession with intent to distribute in New York, prosecutors must establish beyond a reasonable doubt that the defendant possessed a controlled substance, whatever that might be, and it was their intent to sell the drugs.

If a person has a significant amount of drugs packaged in small quantities is well beyond what is customary for personal use, for example, 20 baggies, 60 glassines, and 30 pills, along with a lot of cash in small denominations or the same denomination, then this may be indicative of the intent to sell.

Regardless of whether the individual calls the drugs by a code name or not, the prosecutors will attempt to tie these words back to the possession and sale of drugs, if they feel they can prove intent to distribute beyond a reasonable doubt.

Furthermore, there are certain brands of drugs, such as names given or stamps associated with heroin, law enforcement may track these particular drugs and attempt to establish that the accused is the person who is selling.

Defining Constructive Possession

Constructive possession is not actual physical possession, it is possession in an area where they have both dominion and control. If they do not have the controlled substance on their person, that does not mean that they cannot be accused and convicted of possession.

The defendant could be a higher-up in a criminal enterprise and be ordering those under them what to do. In this scenario, by facilitating and sharing the same intent to possess or sell drugs, they could be both the principal person or an accomplice. The client may not have handled the cocaine, marijuana, heroin, or other controlled substance, but they are either assisting in the transfer or possession of drugs, sharing in the proceeds, procuring the drugs, etc.

Therefore, even if it is not in their hand or in their pocket, they could be considered an accomplice. Similarly, if their possession is constructive, although the narcotics are not on their person, but are in the kitchen, car, or anywhere near them where they have control, prosecutors can still pursue these criminal charges.

Escalation of Charges

It is not atypical for the New York court system to escalate a charge from simple possession to possession with intent. A misdemeanor drug arrest for cocaine, for example, could turn out to be over 500 milligrams of the controlled substance upon review and investigation. What was a misdemeanor becomes a felony.

Similarly, even if the weight is less than 500 milligrams, what was initially prosecuted as a seventh-degree criminal possession of a controlled substance is indicted for a third-degree criminal possession of a controlled substance.

This is because in the eyes of the prosecutor handling their case, nine Adderall pills, five dime bags of marijuana and four tablets of ecstasy while potentially for personal use, appears to be for sale. Should a Grand Jury indict their case, their crime would elevate from a Class A misdemeanor to a Class B felony.